Code of Virginia

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Code of Virginia
Title 51.5. Persons with Disabilities
Subtitle .
Chapter 9. Rights of Persons with Disabilities
2/28/2024

Chapter 9. Rights of Persons with Disabilities.

§ 51.5-40. Nondiscrimination under state grants and programs.

No person with a disability who is otherwise qualified shall on the basis of his disability be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving state financial assistance or under any program or activity conducted by or on behalf of any state agency.

1985, c. 421, § 51.01-40; 1990, c. 458; 1992, c. 627; 2002, c. 572; 2012, c. 847; 2014, c. 616.

§ 51.5-40.1. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Hearing dog" means a dog trained to alert its owner by touch to sounds of danger and sounds to which the owner should respond.

"Mental impairment" means (i) a disability attributable to intellectual disability, autism, or any other neurological disability closely related to intellectual disability and requiring treatment similar to that required by individuals with intellectual disability or (ii) an organic or mental impairment that has substantial adverse effects on an individual's cognitive or volitional functions, including central nervous system disorders or significant discrepancies among mental functions of an individual.

"Mobility-impaired person" means any person who (i) is unable to move about without the aid of crutches, a wheelchair, or any other form of support or (ii) has limited functional ability to ambulate, climb, descend, sit, rise, or perform any related function.

"Otherwise disabled person" means any person who has a physical, sensory, intellectual, developmental, or mental disability or a mental illness.

"Person with a disability" means any person who has a physical or mental impairment that substantially limits one or more of his major life activities or who has a record of such impairment.

"Physical impairment" means any physical condition, anatomic loss, or cosmetic disfigurement that is caused by bodily injury, birth defect, or illness.

"Service dog" means a dog trained to do work or perform tasks for the benefit of a mobility-impaired or otherwise disabled person. The work or tasks performed by a service dog shall be directly related to the individual's disability or disorder. Examples of work or tasks include providing nonviolent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting an individual to the presence of allergens, retrieving items, carrying items, providing physical support and assistance with balance and stability, and preventing or interrupting impulsive or destructive behaviors. The provision of emotional support, well-being, comfort, or companionship shall not constitute work or tasks for the purposes of this definition.

"Three-unit service dog team" means a team consisting of a trained service dog, a person with a disability, and a person who is an adult and who has been trained to handle the service dog.

2012, cc. 476, 507, 803, 835; 2014, c. 616; 2023, cc. 148, 149, 513.

§ 51.5-41. Discrimination against otherwise qualified persons with disabilities by employers prohibited.

A. No employer shall discriminate in employment or promotion practices against an otherwise qualified person with a disability solely because of such disability. For the purposes of this section, an "otherwise qualified person with a disability" means a person qualified to perform the essential functions of a job with or without reasonable accommodations.

B. It is the policy of the Commonwealth that persons with disabilities shall be employed in the state service, the service of the political subdivisions of the Commonwealth, in the public schools, and in all other employment supported in whole or in part by public funds on the same terms and conditions as other persons unless it is shown that the particular disability prevents the performance of the work involved.

C. An employer shall make reasonable accommodation to the known physical and mental impairments of an otherwise qualified person with a disability, if necessary to assist such person in performing a particular job, unless the employer can demonstrate that the accommodation would impose an undue burden on the employer. For the purposes of this section, "mental impairment" does not include active alcoholism or current drug addiction and does not include any mental impairment, disease, or defect that has been successfully asserted by an individual as a defense to any criminal charge.

1. In determining whether an accommodation would constitute an undue burden upon the employer, the following shall be considered:

a. Hardship on the conduct of the employer's business, considering the nature of the employer's operation, including composition and structure of the employer's work force;

b. Size of the facility where employment occurs;

c. The nature and cost of the accommodations needed, taking into account alternate sources of funding or technical assistance included under § 51.5-173;

d. The possibility that the same accommodations may be used by other prospective employees;

e. Safety and health considerations of the person with a disability, other employees, and the public.

2. The employer has the right to choose among equally effective accommodations.

3. Nothing in this section shall require accommodations when the authority to make such accommodations is precluded under the terms of a lease or otherwise prohibited by statute, ordinance, or other regulation.

4. Building modifications made for the purposes of such reasonable accommodation may be made without requiring the remainder of the existing building to comply with the requirements of the Uniform Statewide Building Code.

D. Nothing in this section shall prohibit an employer from refusing to hire or promote, from disciplining, transferring, or discharging or taking any other personnel action pertaining to an applicant or an employee who, because of his disability, is unable to adequately perform his duties, or cannot perform such duties in a manner which would not endanger his health or safety or the health or safety of others. Nothing in this section shall subject an employer to any legal liability resulting from the refusal to employ or promote or from the discharge, transfer, discipline of, or the taking of any other personnel action pertaining to a person with a disability who, because of his disability, is unable to adequately perform his duties, or cannot perform such duties in a manner that would not endanger his health or safety or the health or safety of others.

E. Nothing in this section shall be construed as altering the provisions of the Virginia Minimum Wage Act (§ 40.1-28.8 et seq.).

F. This section shall not apply to employers covered by the federal Rehabilitation Act of 1973.

Code 1950, § 63.1-171.6; 1972, c. 156; 1985, c. 421, § 51.01-41; 2012, cc. 803, 835; 2014, c. 616; 2016, c. 27; 2021, Sp. Sess. I, c. 12.

§ 51.5-42. Discrimination against otherwise qualified persons with disabilities by educational institutions prohibited.

A. No public educational institution or private educational institution, or agent of either, that is a recipient of state funds shall deny admission to the institution, or full and equal access to and enjoyment of any of its educational or extracurricular programs, to an otherwise qualified person with a disability because of such disability. For purposes of this section, an "otherwise qualified person with a disability" means a person with a disability who meets the requirements for admission to the institution and for participation in its programs and whose disability is unrelated to the person's ability to utilize and benefit from educational opportunities, programs, and facilities at the educational institution.

B. This section shall not apply to any public or private educational institution that is subject to the requirements of § 22.1-215 nor to any private elementary or secondary school or institution of higher education that is not a recipient of state funds.

1985, c. 421, § 51.01-42; 2014, c. 616.

§ 51.5-43. Discrimination against qualified persons with disabilities in exercising right to vote prohibited.

No person with a disability who is otherwise entitled to vote under the provisions of § 24.2-400 and who is not disqualified from voting under the provisions of § 24.2-101 shall be denied the opportunity to register or vote in this Commonwealth because of such disability. However, nothing in this section shall be construed to require the release of patients from any state hospital as defined in § 37.2-100 or prisoners of any state correctional facility as defined in § 53.1-1 for purposes of registering to vote or voting.

1985, c. 421, § 51.01-43.

§ 51.5-44. Rights of persons with disabilities in public places and places of public accommodation.

A. A person with a disability has the same rights as other persons to the full and free use of the streets, highways, sidewalks, walkways, public buildings, public facilities, and other public places. For purposes of this section, a "person with a disability" means a person whose disability is unrelated to his ability to utilize and benefit from a place of public accommodation or public service.

B. A person with a disability is entitled to full and equal accommodations, advantages, facilities, and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motor buses, streetcars, subways, boats or any other public conveyances or modes of transportation, restaurants, hotels, lodging places, places of public accommodation, amusement or resort, public entities including schools, and other places to which the general public is invited subject only to the conditions and limitations established by law and applicable alike to all persons.

C. Each town, city, or county, individually or through transportation district commissions, shall ensure that persons with disabilities have access to the public transportation within its jurisdiction by either (i) use of the same transportation facilities or carriers available to the general public, (ii) provision of paratransit or special transportation services for persons with disabilities, or (iii) both. All persons with disabilities in the jurisdiction's service area who, by reason of their disabilities, are unable to use the service for the general public shall be eligible to use such paratransit or special transportation service. No fee that exceeds the fee charged to the general public shall be charged a person with a disability for the use of the same transportation facilities or carriers available to the general public. Paratransit or special transportation service for persons with disabilities may charge fees to such persons comparable to the fees charged to the general public for similar service in the jurisdiction service area, taking into account especially the type, length, and time of trip. Any variance between special service and regular service fares shall be justifiable in terms of actual differences between the two kinds of service provided.

D. Nothing in this title shall be construed to require retrofitting of any public transit equipment or to require the retrofitting, renovation, or alteration of buildings or places to a degree more stringent than that required by the applicable building code in effect at the time the building permit for such building or place is issued.

E. Every totally or partially blind person shall have the right to be accompanied by a dog in harness trained as a guide dog, every person who is deaf or hard of hearing shall have the right to be accompanied by a dog trained as a hearing dog on a blaze orange leash, and every mobility-impaired or otherwise disabled person shall have the right to be accompanied by a dog trained as a service dog in a harness, backpack, or vest identifying the dog as a trained service dog in any of the places listed in subsection B without being required to pay an extra charge for the dog, provided that he shall be liable for any damage done to the premises or facilities by such dog. The provisions of this section shall apply to persons accompanied by a dog that is in training, at least six months of age, and is (i) in harness, provided such person is an experienced trainer of guide dogs or is conducting continuing training of a guide dog; (ii) on a blaze orange leash, provided such person is an experienced trainer of hearing dogs or is conducting continuing training of a hearing dog; (iii) in a harness, backpack, or vest identifying the dog as a trained service dog, provided such person is an experienced trainer of service dogs or is conducting continuing training of a service dog; (iv) wearing a jacket identifying the recognized guide, hearing, or service dog organization, provided such person is an experienced trainer of the organization identified on the jacket; or (v) the person is part of a three-unit service dog team and is conducting continuing training of a service dog.

Code 1950, § 63.1-171.2; 1972, c. 156; 1979, c. 207; 1985, c. 421, § 51.01-44; 1987, c. 500; 1989, c. 326; 1994, c. 108; 2001, c. 443; 2008, cc. 431, 506; 2012, cc. 803, 835; 2014, c. 616; 2019, c. 288.

§ 51.5-44.1. Fraudulent representation of a service dog or hearing dog; penalty.

Any person who knowingly and willfully fits a dog with a harness, collar, vest, or sign, or uses an identification card commonly used by a person with a disability, in order to represent that the dog is a service dog or hearing dog to fraudulently gain public access for such dog pursuant to provisions in § 51.5-44 is guilty of a Class 4 misdemeanor.

2016, c. 575.

§ 51.5-45. Right of persons with disabilities to housing accommodations.

A. All persons with disabilities unrelated to their ability to acquire, rent, or maintain property shall be entitled to full and equal opportunity to acquire, as other members of the general public, any housing accommodations offered for sale, rent, lease, or compensation, subject to the conditions and limitations established by law and applying alike to all persons. "Housing accommodations" for the purpose of this section means any real property, or portion thereof, which is used or occupied or is intended, arranged, or designed to be used or occupied, as the home, residence, or sleeping place of one or more human beings but does not include any single family residence the occupant or owner of which rents, leases, or furnishes for compensation not more than one room therein.

B. Every visually impaired person who has a guide dog, every person who is deaf or hard of hearing and has a hearing dog, and every mobility-impaired or otherwise disabled person with a service dog shall be entitled to full and equal access with such dog to all housing accommodations provided for in this section. He shall not be required to pay extra compensation for such dog but shall be liable for any damage done to the premises by such dog.

C. Nothing in this section shall require any person offering for sale, renting, leasing, or providing for compensation real property to modify that real property or provide a higher degree of care for a person with a disability than for a person who is not disabled, except as provided in § 36-99.5, nor shall anything in this section require any person who is selling, renting, leasing, or providing for compensation real property to sell, rent, lease, or provide such property to any person who would constitute a direct threat to the property or safety of others.

Code 1950, § 63.1-171.7; 1972, c. 156; 1979, c. 207; 1984, c. 753; 1985, c. 421, § 51.01-45; 1987, c. 500; 2014, c. 616; 2019, c. 288.

§ 51.5-46. Remedies.

A. Any circuit court having jurisdiction and venue pursuant to Title 8.01, on the petition of any person with a disability, shall have the right to enjoin the abridgement of rights set forth in this chapter and to order such affirmative equitable relief as is appropriate and to award compensatory damages and to award to a prevailing party reasonable attorney fees, except that a defendant shall not be entitled to an award of attorney fees unless the court finds that the claim was frivolous, unreasonable or groundless, or brought in bad faith. Compensatory damages shall not include damages for pain and suffering. Punitive damages shall not be awarded.

B. An action may be commenced pursuant to this section any time within one year of the occurrence of any violation of rights under this chapter. However, such action shall be forever barred unless such claimant or his agent, attorney or representative has commenced such action or has filed by registered mail a written statement of the nature of the claim with the potential defendant or defendants within 180 days of the occurrence of the alleged violation. Any liability for back pay shall not accrue from a date more than 180 days prior to the filing of the notice or the initial pleading in such civil action and shall be limited to a total of 180 days, reduced by the amount of other earnings over the same period. The petitioner shall have a duty to mitigate damages.

C. The relief available for violations of this chapter shall be limited to the relief set forth in this section.

1985, c. 421, § 51.01-46; 1990, c. 458; 1992, c. 627; 2002, c. 572; 2005, c. 681; 2013, c. 571; 2015, c. 710.